Today's Fin

Lots of interesting stuff in today’s Fin
(subscription required). Tony Harris criticises the view that success justifies the lies that were used to get us into the war on Iraq (I’ll have more to say on this later).

The editorial, on the Free Trade Agreement with the US and its implications for copyright, for once agrees with me (and Kim Weatherall)

It would be a dismal irony if we were to sacrifice free trade in legal CDs, DVDs and software in the name of free trade.

Also in the same area is a piece by the main supporter of the FTA, Alan Oxley, attacking Kyoto. Oxley doesn’t argue the merits. He just says that since the US is staying out, economies like those of Canada and Australia, closely tied to the US, will lose competitiveness by signing. Interestingly, nothing has been said about Kyoto in relation to the FTA, but I bet we are foreclosing a lot of options, such as taxes on carbon-intensive imports from nonsignatory countries (that is, the US).

Finally, there’s a letter from Michael Stutchbury, editor of the Oz, complaining that it appears that Fairfax columnists get a bonus every time they attack the Australian. If only!

It’s all too easy to say an opponent has “lied”, provided you misrepresent what he has said or, even more effectively, give the word “lie” spurious connotations.
At several recent football matches, thousands of fans during the game [based on the available evidence on the scoreboard] would have said that they had no doubt their side was going to lose. When their team made an amazing turn-around and got up, they may have been proved wrong; but it hardly establishes them as liars.
Journalists [and true believers] are often unconsciously flexible with language. People with whom you agree make errors of judgment; Those with whom you disagree, “lie”.

How so? I would have thought that things like fartarseing around with the Pharmacutical benefits scheme would require some legislative involvement.

If this is in fact the case, I must admit to some wry amusement if the ALP oppose the FTA. After all, it was a favorite trick of theirs to use the ‘treaty clause’ of the constitution to get all manner of measures around the Senate.

Norman, it’s more analogous to the crowd having watched the football game, seen the home side being thrashed, heard the independent radio commentary saying it was way behind on the scorecard, but preferring to believe a scoreboard (kept by the president of the home side) which showed it was way ahead.

At the end of the match, should anyone be surprised if the home side had in fact lost? And what should you think of that president’s competence or honesty? Oh, and would you bet on that president’s prediction that they were going to thrash next week’s visiting team (Iran)?

Scott, the FTA won’t require Senate approval and, on past form, we won’t get to see it until it’s been signed.

If this is in fact the case, I must admit to some wry amusement if the ALP oppose the FTA. After all, it was a favorite trick of theirs to use the ‘treaty clause’ of the constitution to get all manner of measures around the Senate.

Not quite right. Labor used the treaty clause to draft legislation which would defeat constitutional challenges. But it still had to get it through the Senate in the usual way.

On the other hand, the FTA would give American companies the right to sue for enforcement of its provisions. I don’t think this needs legislative ratification, but I could be wrong. I’ll ask Ken Parish about this.

Re treaties and the Senate. The previous Labor government did indeed use the external affairs power of the Constitution (section 51(29)) to extend federal legislative power. It did this by signing lots of treaties, whose subject matter could then be enacted into federal law despite being otherwise matters of state power. The Tassie Dams case confirmed the constitutional effectiveness of this strategy.

The Howard government, when it came to power, implemented a voluntary arrangement whereby it now submits all treaties for consultation with State governments and consideration by a Senate committee. Those arrangements partly reflect the traditional Liberal commitment to federalism, as well as a conservative suspicion of internationalism (not to mention an entirely justified view that the Hawke and Keating governments tended to sign and ratify treaties willy nilly, with no real intention of ever honouring them through legislation or practice).

However, to the best of my knowledge the Howard government consultative arrangements on treaties have never been given legislative force. Thus there is no legally enforceable obligation to do so. They could simply ratify the Free Trade Agreement without ever going near the Senate if they wanted. However that would be unwise to the extent that bringing the treaty into actual effective operation requires legislation (which numerous aspects no doubt would). That legislation would still need to get through the Senate. Treaties are not self-executing in Australian law i.e. they don’t create any domestic legal rights or obligations unless and until their provisions are legislated.

When you get back from your home duties Ken, I have a couple more queries.

First, I recall there was a deportation case some time ago where the UN Human Rights Convention was found to be applicable in the absence of any explicit legislation – can you fill in the details on this.

Second, I was working on the analogy of the WTO. Our membership means that firms in other countries can sue in the WTO and receive damages (or something like damages), as in the Howe leather case, and, as far as I can see, no Australian legislation is required for this. It’s true that these damages are payable by the Australian government and I think also that there is nothing analogous to an injunction.

So as I read it, if the terms of the FTA are inconsistent with, say, the PBS, US pharmaceutical companies can sue and Australia then has the choice of scrapping the PBS or paying up. The Senate can refuse to scrap the PBS, but it has a gun at its head.

Although treaties don’t create binding legal obligations in domestic law, they do create potentially enforceable obligations between nation state signatories, to the extent that the treaty contains enforcement mechanisms (as the WTO treaty manifestly does). Thus, as you observe, Australia could be (and has been) dragged before the WTO and a “damages” award could be made (as in Howe Leather). The liability is between nation states, however, and no direct liability is imposed on Australian individuals or corporations. If Australia fails to pay the “damages” and/or fails to take action domestically to prevent further breaches, then the WTO may also authorise trade sanctions as the ultimate enforcement mechanism.

That could equally potentially occur if the Howrd government signs and ratifies a Free Trade Agreement with the US without obtaining Senate imprimatur, and if that treaty contains similar enforcement machinery (as I’m sure it would). However, no liability can be imposed directly on Australian individuals or corporations without domestic legislation being passed. Thus, the Australian government would incur the treaty “damages” liability but woud be unable to recover it from the company/individual concerned in the absence of legislative backing. However, the rest of us would still suffer indirectly through the effect of any resulting trade sanctions.

Nevertheless, the need for domestic legislation is fairly clear. If it’s true that one of the major concessions the Americans are seeking relates to intellectual property laws, those aspects of any treaty could not be made domestically effective without legislation. That’s why I say it’s fairly unlikely the Howard government would ratify any FTA without going through the Senate process, unless they hope to put up any necessary legislation as yet another double dissolution trigger. However, if treaty negotiations won’t even be finished until December (as they’re saying, and I suspect even that is optimistic), it would be fairly difficult to get necessary legislation drafted and rejected twice in the time frame required by the Constitution for double dissolution triggers (given that Parliament must be dissolved by 12 August 2004). Thus I really doubt that there is any intention to ram the FTA through in the way you’re suggesting.